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Puno : En Banc : Decision

EN BANC

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088

REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, JJ.

OFFICE OF THE EXECUTIVE

SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of

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the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence
in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which shall have the power to exercise
its jurisdiction over persons for the most serious crimes of international concern xxx and shall be
[1]
complementary to the national criminal jurisdictions. Its jurisdiction covers the crime of genocide,
[2]
crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The
Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for
signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines
signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine
[3]
Mission to the United Nations. Its provisions, however, require that it be subject to ratification,
[4]
acceptance or approval of the signatory states.

Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and
the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the
Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international
law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed
copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome
Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on
the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose
of a treaty when they have signed the treaty prior to ratification unless they have made their intention
[5]
clear not to become parties to the treaty.

The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy

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of courts. On the substantive issue raised by petitioners, respondents argue that the executive department
has no duty to transmit the Rome Statute to the Senate for concurrence.

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting
[6]
from an office, trust, or station. We have held that to be given due course, a petition for mandamus
must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation,
board or person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner
in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be
[7]
enforced and a direct interest in the duty or act to be performed. The Court will exercise its power of
judicial review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. Legal standing means a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the government act that is being
challenged. The term interest is material interest, an interest in issue and to be affected by the decree, as
[8]
distinguished from mere interest in the question involved, or a mere incidental interest.

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the
suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is composed of individuals and corporate
entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the
Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and
human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical
entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting
the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and
Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition,
and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,

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[9]
Jr.; and a group of fifth year working law students from the University of the Philippines College of
Law who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
[10]
the court so largely depends for illumination of difficult constitutional questions.

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens
of the country. They have not shown, however, that they have sustained or will sustain a direct injury
from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they
will be deprived of their remedies for the protection and enforcement of their rights does not persuade.
The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are
available under our national laws to protect our citizens against human rights violations and petitioners
can always seek redress for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to participate in the
[11]
exercise of the powers of that institution. Thus, legislators have the standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue
to question the validity of any official action which they claim infringes their prerogatives as legislators.
The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty
entered into by the executive branch, in this case, the Rome Statute. The petition seeks to order the
executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.
Senator Pimentel, as member of the institution, certainly has the legal standing to assert such authority
of the Senate.

We now go to the substantive issue.

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The core issue in this petition for mandamus is whether the Executive Secretary and the Department of
Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by
a member of the Philippine Mission to the United Nations even without the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole organ and
[12]
authority in external relations and is the countrys sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
[13]
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate. The 1935 and the 1973 Constitution
also required the concurrence by the legislature to the treaties entered into by the executive. Section 10
(7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all
the Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to provide
[14]
a check on the executive in the field of foreign relations. By requiring the concurrence of the

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legislature in the treaties entered into by the President, the Constitution ensures a healthy system of
[15]
checks and balance necessary in the nations pursuit of political maturity and growth.

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean
that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification,
and exchange of the instruments of ratification. The treaty may then be submitted for
registration and publication under the U.N. Charter, although this step is not essential to the
validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this
task to his authorized representatives. These representatives are provided with credentials
known as full powers, which they exhibit to the other negotiators at the start of the formal
discussions. It is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted, depending on the issues
involved, and may even collapse in case the parties are unable to come to an agreement on
the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and
for the purpose of symbolizing the good faith of the parties; but, significantly, it does not
indicate the final consent of the state in cases where ratification of the treaty is
required. The document is ordinarily signed in accordance with the alternat, that is, each
of the several negotiators is allowed to sign first on the copy which he will bring home to
his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representatives. The purpose of ratification is
to enable the contracting states to examine the treaty more closely and to give them an
opportunity to refuse to be bound by it should they find it inimical to their interests. It
is for this reason that most treaties are made subject to the scrutiny and consent of a
department of the government other than that which negotiated them.

xxx

The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different date
has been agreed upon by the parties. Where ratification is dispensed with and no effectivity

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[16]
clause is embodied in the treaty, the instrument is deemed effective upon its signature.
[emphasis supplied]

Petitioners arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are two separate
and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended
as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually
performed by the states authorized representative in the diplomatic mission. Ratification, on the other
hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the head of the state or of the
[17]
government. Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25,
1997 provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same shall be
transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare
the ratification papers and forward the signed copy of the treaty to the President for ratification. After
the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the
Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign
Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order
No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an
Executive Agreement. The domestic requirements for the entry into force of a treaty or an
executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of

Foreign Affairs after their signing for the preparation of the ratification
papers. The transmittal shall include the highlights of the agreements
and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by

the concerned agency, shall transmit the agreements to the President of
the Philippines for his ratification. The original signed instrument of
ratification shall then be returned to the Department of Foreign Affairs
for appropriate action.
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B. Treaties.

i. All treaties, regardless of their designation, shall comply with the

requirements provided in sub-paragraph[s] 1 and 2, item A (Executive
Agreements) of this Section. In addition, the Department of Foreign
Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy of
the treaties, in such numbers as may be required by the Senate, together
with a certified true copy of the ratification instrument, shall accompany
the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of

Foreign Affairs shall comply with the provision of the treaties in
effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international law to ratify the
treaty which it has signed is without basis. The signature does not signify the final consent of the state to
the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the states be subject to ratification, acceptance
or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally
confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its
willingness to be bound by the provisions of such treaty. After the treaty is signed by the states
representative, the President, being accountable to the people, is burdened with the responsibility and
the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest
of the state and its people. Thus, the President has the discretion even after the signing of the treaty by
the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of
Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so,
the requirement of ratification of treaties would be pointless and futile. It has been held that a state has
[18]
no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is
no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on
substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be
[19]
justified in taking offense.

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It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
[20]
withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
[21]
refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf
[22]
is a serious step that should not be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no
[23]
jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

REYNATO S. PUNO
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

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ARTEMIO V. PANGANIBAN LEONARDO A. QUISUMBING

Associate Justice Associate Justice

(on official leave)

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ
Associate Justice Associate Justice

(on official leave)

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice

(on official leave)

RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

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CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

* On official leave.

[1]
Article 1, Rome Statute.

[2]
Article 5, Rome Statute.

[3]
Annex B of Petition, Rollo, p. 101.

[4]
Article 25, Rome Statute.

[5]
Article 18, Vienna Convention on the Law of Treaties reads:

Article 18
Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance
or approval, until it shall have made its intention clear not to become a party to the treaty; or
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(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided
that such entry into force is not unduly delayed.

[6]
Section 3, Rule 65, 1997 Rules of Civil Procedure.

[7]
Legaspi vs. Civil Service Commission, 150 SCRA 530 (1987).

[8]
Joya vs. Presidential Commission on Good Government, 225 SCRA 568 (1993).

[9]
224 SCRA 792 (1993).

[10]
Gonzales vs. Narvasa, 337 SCRA 733 (2000).

[11]
Del Mar vs. Philippine Amusement and Gaming Corporation, 346 SCRA 485 (2000).

[12]
Cortes, The Philippine Presidency: A Study of Executive Power (1966), p. 187.

[13]
Cruz, Philippine Political Law (1996 Ed.), p. 223.

[14]
Cortes, supra note 12, p. 189.

[15]
Bayan vs. Zamora, 342 SCRA 449 (2000).

[16]
Cruz, International Law (1998 Ed.), pp. 172-174.

[17]
Bayan vs. Zamora, supra note 15.

[18]
Salonga and Yap, Public International Law (5th Edition), p. 138.

[19]
Cruz, International Law, supra note 16, p.174.

[20]
Bayan vs. Zamora, supra note 15.

[21]
Cruz, International Law, supra note 16, p.174.

[22]
Salonga and Yap, supra note 18.

[23]
See Severino vs. Governor-General, 16 Phil. 366 (1910).

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